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January 10, 2002

WHEN TIME DOES NOT HEAL
by Daniel W. Shuman, Professor of Law at Southern Methodist University’s Dedman School of Law

Although the U.S. Constitution requires a speedy trial for criminal defendants, no such relief is available for those caught in the sluggish maze of the civil justice system. Crowded court dockets and warring parties can drag out lawsuits for years. If criminal cases are no less complex or difficult to try than civil cases, why then does society tolerate greater delays in reaching trial in civil cases? Because the consequences of delay are thought of only in terms of money -- the amount of attorney fees and settlements or judgments -- and no consideration is given to the psychological harm that unresolved civil disputes inflict on people.

Many studies have documented the psychological impact of litigation. One set of studies, embraced by tort law’s critics, concludes that lawsuits are not therapeutic because they require plaintiffs to relive their traumas and postpone healing. Psychologists have even given this a name: compensation neurosis. Beyond the stress of being a litigant, which requires the individual to publicize much private information and be subjected to attacks by lawyers skilled in heightening doubt and disbelief, litigation provides an incentive not to get better. Litigation draws claimants into a blaming struggle in which they are encouraged to place responsibility for their injury on others and exacerbate their symptoms and complaints. Ending the litigation as quickly as possible, these studies suggest, removes an incentive for claimants to play the sick role and allows them to return as productive members of society.

On the flip side are studies which suggest that claimants may experience psychological benefits from the tort system. Issues of power and domination are central here. One example is the use of tort litigation to empower rape victims. In the legal fight, plaintiffs may gain power over their abusers by forcing them to answer for their actions in court, particularly important if the rapist has escaped responsibility in a criminal trial. Tort litigation offers rape survivors an opportunity to reject the role of silent, fearful victim and permits them to regain control over their lives by asserting their sense of self-determination and autonomy. Further emotional healing may occur when a third party, a judge or jury, validates the survivor’s claims. Victims of child sexual abuse and sexual harassment also may find litigation helpful in reshaping the power imbalance disturbed by abuse or harassment.

From either perspective, however, a quick resolution of the dispute benefits all parties. A prolonged court battle may have chronic debilitating consequences for claimants. Research on the grief process suggests that delays in the resolution of wrongful death litigation are likely to cause survivors to suspend the grief process, fixating on their loss. In addition, unnecessary delays may act as an impediment to those seeking to regain control over their lives by redress through the courts. Claimants risk becoming frustrated with and abandoning the legal process, permanently accepting the role of powerless victim.

Another reason for society tolerating greater delay in civil trials is that it is common to think about delay’s effect only on plaintiffs. Delays are seen as beneficial to defendants because they weaken a plaintiff’s case. By trial time, plaintiffs are thought to be more likely to settle, appear less injured, and their witnesses may vanish or forget important testimony. But studies have found that delay causes harm to defendants, too. One study of 51 physicians sued for malpractice revealed that all but two had developed symptoms in response to the litigation, including inner tension, frustration, anger, insomnia, and difficulty concentrating. Even when defendants prevail in lawsuits, many professionals see the allegations as assaults on their professional competence and morality. Unnecessary delay not only hurts plaintiffs, but also exacerbates the harm to defendants for whom allegations of fault become the dominant disturbing focus of their lives.

By focusing on resolving disputes faster, critics and supporters of the current tort system will find common ground. Tort critics remind us that money is never an adequate recompense for suffering. Tort supporters remind us that suffering has consequences that society cannot afford to ignore. Both sides share an interest in the emotional and physical consequences of court delays on litigants. Tort law debates and civil justice reform have become a zero sum game in which the least powerful interests are bound to lose what the more powerful interests gain. Avoiding unnecessary delay is different. Unlike tort reform proposals that seek to benefit either plaintiffs or defendants, avoiding unnecessary delay in the resolution of tort claims benefits everybody.


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